Monday, June 6, 2011

The state's two largest newspapers wasted no time in pushing their case for a judicial order forcing the Cabinet for Health and Family Services to provide records about the deaths or abuse of children under the cabinet's supervision.

The Courier-Journal and the Herald-Leader filed a motion in Franklin Circuit Court asking Judge Phillip Shepherd to order the cabinet to release the records after U.S. District Judge Danny Reeves on June 1 denied the cabinet's motion to move the issue to federal court.

The motion filed by the newspapers asks Judge Shepherd to order the records to be made public, records similar to those the judge declared were public records in May 2010. They also ask that the court nullify emergency orders the cabinet issued to try to circumvent the judge's ruling. Rather than appealing Judge Shepherd's decision ordering the release of some records, the cabinet wrote orders to limit what records it will release concerning the death or abuse of a child under the cabinet's protection.

In December Courier-Journal reporter Deborah Yetter filed an open records request for records related to the deaths of two children under the cabinet's supervision. The cabinet told Yetter it needed 30 days to determine whether the records she sought existed even though the state's Open Records Act gives an agency three days to make that determination. In January, Herald-Leader reporter Bill Estep made a request for records relating to the death of any child under the cabinet's supervision that had died during Fiscal Year 2010, and the cabinet denied Estep's request as being burdensome.

At that point the newspapers filed suit again. The cabinet responded by trying to move the case to federal court, a move that failed.

Thursday, June 2, 2011

A federal judge has ruled against the Cabinet for Health and Family Services in its continuing battle with two Kentucky newspapers over the cabinet's records of child abuse deaths and injuries.

U.S. District Judge Danny Reeves issued his order June 1 remanding the lawsuit to state court, where The Louisville Courier-Journal and The Lexington Herald-Leader had filed it. The cabinet had filed a motion to move the case moved to federal court.

At stake is access to records Franklin Circuit Court Judge Phillip Shepherd has already declared are public records.

In May 2010, Judge Shepherd ruled that the state Open Records Act did not allow the cabinet to shield from the public its records of the death of a child who was under the supervision of the cabinet. The case involved the death of a Somerset toddler who drank drain cleaner. He and his mother, then 14, were both under the supervision of the cabinet.

After Shepherd's ruling, the newspapers sought cabinet records involving other deaths. When the cabinet denied their requests, the newspapers filed suit in Franklin Circuit Court. The cabinet issued emergency regulations that would limit what records the state would have to make public and then filed a motion to move the case to federal court.

Judge Reeves, however, denied the cabinet's motion and returned the case to Judge Shepherd. "The Franklin Circuit Court aptly defined the contours of the Open Records Act as it relates to child protection cases," the order said, then quoted from Judge Shepherd's 2010 decision: “Under the Kentucky Open Records Act, the public records related to the death of a child under the protection of the state foster care system are open to public inspection."

The newspapers will file a motion asking Judge Shepherd to order the cabinet to release the records. (Read more)